Chotin Transp., Inc. v. U.S.

• Decision Date: 05 June 1987
• Docket Number: Nos. 84-5652,85-5138,s. 84-5652
• Parties: CHOTIN TRANSPORTATION, INC., Plaintiff-Appellant, Cross-Appellee, v. UNITED STATES of America, Defendant-Appellee, Cross-Appellant. . Re
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1342

819 F.2d 1342

1988 A.M.C. 2375

CHOTIN TRANSPORTATION, INC., Plaintiff-Appellant, Cross-Appellee, v. UNITED STATES of America, Defendant-Appellee, Cross-Appellant.

Nos. 84-5652, 85-5138.

United States Court of Appeals Sixth Circuit.

Reargued Nov. 12, 1986.

Decided June 5, 1987.

Frank S. Thackston, Jr. (argued), Lake, Tindall, Hunger & Thackston, Greenville, Miss., C.W. Walker, III, for plaintiff-appellant, cross-appellee.

Robert V. Smyth, II, U.S. Army, Nashville Dist., Corps of Engineers, Nashville, Tenn., Thomas L. Jones (argued), Deborah Kant, Michael Jay Singer, Dept. of Justice, Civil Div., Washington, D.C., for defendant-appellee, cross-appellant.

Before LIVELY, Chief Judge, ENGEL, KEITH, MERRITT, KENNEDY, MARTIN, JONES, KRUPANSKY, WELLFORD, MILBURN, GUY, NELSON, RYAN, BOGGS and NORRIS, Circuit Judges, and EDWARDS, Senior Circuit Judge.

KRUPANSKY, Circuit Judge.

The plaintiff-appellant Chotin Transportation, Inc. (Chotin) appealed, and the defendant-appellee United States of America (government) cross-appealed from the district court's order awarding the United States $136,374.51 in damages plus prejudgment interest in this admiralty action commenced pursuant to the Suits in Admiralty Act (SIAA), 46 U.S.C. Secs. 741-752.

The record disclosed the following facts, which were not in dispute. On January 20, 1982, the Chotin tug M/V Francis R. Keegan, Barge Chotin 1794, and Barge Chotin 3390, were moving upstream on the Tennessee River which required passage through the Wilson Lock. The lock is the property of the United States and is operated by the Army Corps of Engineers, an instrumentality of the United States. Barge 3390 was the lead barge followed by Barge 1794 and the tug. The barge train reached the lock on the evening of January 20 during deteriorating weather conditions with restricted visibility occasioned by a dense fog and heavy rain.

The captain and pilot of the tug, Paul Horton (Horton), radioed Ivan Wallace (Wallace), the single lock operator on duty that night, for permission to enter the lock. Horton advised Wallace that the flotilla was 586 1/2 feet in length, whereupon Wallace opened the 600 foot lock's downriver "miter" ¹ gates and authorized Horton to move the flotilla into the lock chamber.

The barge train was maneuvered into the lock and placed along the lock chamber's river wall on the starboard side of the tug and barges. Wallace, who was in the lock's lower land wall control station, then instructed Horton to move the flotilla to the land wall on the port side of the vessels. Horton complied, and the vessels were brought to a stop four to five feet from the upper "lift" ² gate which afforded sufficient clearance to close the downriver miter gates, and in the judgment of the tug's crew, provided adequate distance for the bow of the lead barge, Chotin 3390, to clear the upriver lift gate. The tug's crew secured the tug and barges to the land wall. Lines were connected from "floating mooring bits" ³ on the chamber wall to deck fittings on the vessels to prevent forward and backward movement of the barge train within the lock. After both lines had been secured, and the tug's throttles had been placed in the neutral position to equalize the stress on both lines, Horton reported to Wallace that the tug and its barges had been "tied-off" on the land wall of the chamber.

Wallace had observed the stern of the tug and the crew as it secured the flotilla from a distance of approximately 90-100 feet from the lower land wall control station. Convinced that the flotilla had been secured to permit the downstream miter gates to close, Wallace closed the gates. At that point in time the tug and barges could have been moved astern to permit a greater clearance between the head of the flotilla and the upstream lift gate once the downstream miter gates were closed. Horton, however, left the vessels secured as they had been initially tied off along the chamber land wall.

By the time the downstream miter gates had been closed, the fog had become more dense, and, as a result of the reduced visibility, Wallace could no longer view the mooring lines nor the clearance between the flotilla and the upstream lift gate. Wallace nevertheless opened the lock's intake valves from the lower land wall control station permitting water to enter the chamber.

After he had opened the valves, he walked along the land wall to examine the mooring lines, but was unable to do so because of the dense fog. Wallace thereupon proceeded, via motor scooter, to the lock's main operations building which was situated between the downriver and upriver control stations where he obtained a newspaper for the tug's crew. He thereafter continued to the second mooring bit approximately 126 feet downriver from the upstream lift gate. The mooring lines were not visible at that position so he proceeded to the first mooring bit approximately 54 feet downriver from the upstream lift gate. The mooring lines were still not visible so he decided to close the intake valves and stop the flow of water into the lock. To implement this decision he proceeded to the upper land wall control station where additional control valves were located, but because of his haste in attempting to enter the station, he experienced time-consuming difficulty in positioning his key to turn the lock to gain entry into the facility.

During the time Wallace was travelling from the lower to the upper land wall control stations, the flotilla experienced two episodes of "surging" which caused the flotilla to move forward and backward in the lock chamber. The first surge occurred when water was initially introduced into the lock. During that episode, a crew member retied the towing line to remove slack, and Horton engaged the tug's starboard engine astern to hold the flotilla in place. The surging stopped as the flow of water into the chamber stabilized and the water level continued to rise. After the surging had ceased, the tug's crew checked the clearance between the bow of Barge 3390 and the upstream lift gate and erroneously concluded that its bow would clear the gate.

Approximately eight minutes later, the second episode of surging occurred when the water intake valves automatically increased the water flow into the chamber. The second surging continued for approximately six to eight minutes. Horton failed to advise Wallace of either incident.

When the water level in the lock had raised the barge train to within a few feet below the upstream lift gate, the tug's first mate realized that the bow of Barge 3390 would collide with the gate. Another crew member reported that impact was imminent. The first mate radioed Horton of the danger, and Horton engaged the tug's engines astern in an effort to back-off the flotilla from the upstream lift gate. He then radioed Wallace to close the water intake valve; however, the impact was unavoidable. The bow of the Barge 3390 struck the upstream lift gate, and, as the water continued to rise, became wedged under the gate causing the coupling between Barge 3390 and Barge 1794 to break and the bow rake of Barge 3390 to disconnect, damaging the lock chamber and the barge.

Chotin commenced this action under the SIAA, 46 U.S.C. Secs. 741-752, in the United States District Court for the Middle District of Tennessee, wherein it alleged that the negligent operation of Wilson Lock by the government caused damage to its Barge 3390. The government counterclaimed against Chotin for negligence which caused damage to the upstream lift gate, and in a related third-party in rem action charged the tug Keegan, Barge 1794, and Barge 3390 with negligence that resulted in damage to the same upstream lift gate. The third-party in rem action was initiated pursuant to the Rivers and Harbors Act, 33 U.S.C. Secs. 408 and 412. The parties stipulated their respective monetary damages. At the conclusion of a bench trial, the government dismissed its in personam negligence claim and elected to proceed on its in rem action against Chotin.

The trial court, having invoked maritime comparative negligence principles in considering Chotin's claim against the government, concluded that each was 50% negligent in causing the collision between Barge 3390 and the upstream lift gate. The court decided that the government was negligent because Wallace had breached his duties as lockmaster to control and manage the lock and to supervise the mooring operations of the barge train adequately, see 33 C.F.R. Sec. 207.300, and that Chotin was negligent in failing to operate the tug and barges properly while the flotilla was in the lock. The court thereupon assessed 50% of Chotin's damages to Barge 3390 against the government. In addressing the government's in rem claim against Chotin, the court determined that the in rem third-party defendants were strictly liable to the United States under 33 U.S.C. Secs. 408 and 412 for the total damage to the upstream lift gate. Judgment was entered for the government for a net recovery of $136,374.51 plus prejudgment interest.

Chotin thereupon timely appealed that part of the district court's judgment which held it to be liable for the total amount of the damage to the upstream lift gate of the lock, and the government cross-appealed that part of the district court's judgment which imposed 50% liability against it for the damages to Barge 3390. A panel of this court affirmed the district court's decision which assessed 50% of the damages to Barge 3390 against the United States, but reversed that part of the judgment which concluded that the in rem third-party defendants were strictly liable for the damages to the upstream lift gate. Chotin Transp., Inc. v. United States, 784 F.2d 206 (6th Cir.1986). Upon the motion of the government for reconsideration, this court vacated the panel's decision, 793 F.2d 136 (6th Cir.1986), and assigned the case for en banc rehearing.

On the initial appeal to this court, the...